Supreme Court prostitution decision: 5 questions

Valerie Scott holds up a copy of the ruling issued by the Supreme Court of Canada striking down the country's prostitution laws at the Supreme Court of Canada in Ottawa on Friday, Dec. 20, 2013. (Adrian Wyld/Canadian Press)

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The Supreme Court of Canada's unanimous decision striking down federal prostitution laws means that big changes are coming to the sex trade industry, but there are a lot of unanswered questions about what those changes will look like.

The top court found that current laws violate the guarantee to life, liberty and security of the person enshrined in the Charter of Rights and Freedoms.

Parliament has been given a one-year reprieve to respond with new legislation, meaning the current laws against keeping a brothel, living off the avails of prostitution, and street soliciting will remain in place until December 2014.

Here are five questions about the landmark decision:

What did the Supreme Court say are the problems with the current prostitution regime?

The purpose of the living of avails of prostitution law “is to target pimps and the parasitic, exploitative conduct in which they engage,” the court said. “The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. The living on the avails provision is consequently overbroad.”

In addition, the law on prohibiting soliciting was designed “not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution,” the court said.

The role of Parliament, it said, is “to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.”

What are the broad options before federal legislators?

Following the decision on Friday, Justice Minister Peter MacKay said his department will explore "all possible options" to ensure Canada's laws address what he calls the "significant harms" that flow from prostitution – and there are a lot of options to choose from.

John Lowman, a criminologist at Simon Fraser University in B.C. who has studied prostitution in Canada for more than three decades, said Parliament can either criminalize the sale of sex, the purchase of sex, or both. It can also choose to regulate "where and under what circumstances prostitution can occur."

Parliament could also do nothing, in which case the provinces and municipalities would likely develop their own provisions governing prostitution, creating a patchwork of different rules across the country.

In the event that Parliament has tabled legislation but can't pass it by the December 2014 deadline, it could ask the Supreme Court for an extension on the effect of the ruling.

How likely is it that Parliament will simply ban prostitution outright?

Although it’s legal in Canada, many of the activities associated with prostitution are classified as criminal offences – and that arrangement was the focus of Friday’s court’s decision.

Parliament could choose to make both the purchase and sale of sex illegal, which is the situation in many U.S. states. But Angela Campbell, a law professor at McGill University in Montreal who has written about the sex trade, says that could easily lead to a new legal challenge.

“I think we would end up back in the situation we were in before the Bedford litigation,” she said, referring to the case that led the Supreme Court to strike down Canada's prostitution laws. A legal challenge on an outright ban would likely be successful in the wake of Friday’s decision, Campbell said.

What are other alternatives to the current system?

There are a lot of different prostitution regimes around the world that federal legislators can look to, or they can devise a “made in Canada” system. Prostitution is legal in much of Europe and Latin America, and brothels are legal in numerous countries including Germany and Switzerland.

One option is to "regulate indirectly, through zoning for entertainment businesses, which keeps prostitution in certain areas of town,” Lowman said. Another option is to have "direct regulation of prostitution like you do in places like Netherlands or Nevada,” where brothels are legal with oversight from the state.

In Sweden, the government has made it illegal to buy sex but not to sell it, which is another approach that Parliament may consider.

Are there indications as to how Parliament may amend prostitution laws?

Lowman points to a 2006 report by the parliamentary subcommittee on solicitation laws, which proposes criminalizing the purchase of sex, and also criminalizing the sale of sex once a prostitute has been issued with a warning.

At the Conservative Party convention earlier this fall, Lowman said, there was also a motion adopted that was similar to the Swedish model, proposing a system of “asymmetrical criminalization” on the purchase of sex but not the sale of sex.